Ames v. Ames

• Decision Date: 18 June 1925
• Docket Number: No. 45.,45.
• Citation: 231 Mich. 347,204 N.W. 117
• Parties: AMES v. AMES.
• Court: Michigan Supreme Court

231 Mich. 347

204 N.W. 117

AMES

v.AMES.

No. 45.

Supreme Court of Michigan.

June 18, 1925.

Appeal from Curcuit Court, Kent County, in Chancery; Major L. Dunham, Judge.

Suit for divorce by Hattie Ames against Herbert Ames. Decree for plaintiff, and defendant appeals. Reversed and remanded, with directions.

Argued before McDONALD, C. J., and CLARK, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ.

Moore and Fellows, JJ., dissenting.

Arthur F. Shaw, of Grand Rapids, for appellant.

Dunham, Cholette & Quail, of Grand Rapids, for appellee.

MOORE, J.

The plaintiff filed her bill of complaint praying for a divorce, for the custody of the infant children, and for alimony.

Plaintiff charged that defendant treated her cruelly by continually finding fault with her and her children, using toward her vile, foul, and obscene language, continually using profane language, threatening to do her serious bodily harm, upon one occasion with a butcher knife, and that upon some occasions he ordered the daughter of plaintiff to leave their home, and caused plaintiff to be subjected to shameful abuses on the part of defendant, and never properly provided for the care of his family.

To this bill of complaint defendant, on July 11, 1924, filed his answer, denying all the allegations.

There are three children, one born September 19, 1907, one July 16, 1909, and one March 26, 1912, all living with plaintiff.

The parties were married on the 2d day of September, 1905, and during their married life purchased a lot with a small dwelling house and a small garage thereon. The property was purchased by these parties for $1,200, and there is now a mortgage upon it amounting to approximately $650.

After a hearing in open court, the court granted plaintiff a decree of divorce, giving her the custody of the children, requiring defendant to pay the sum of $10 per week for the support of said children until the youngest child shall have attained the age of 16 years, requiring defendant to pay the amount of $40 which he was in arrears, under an order for temporary alimony at the rate of $2.50 per week, and providing that the real property, consisting of this house and lot, which was owned by the entireties, should be the property of the plaintiff, she to assume all back taxes and the mortgage thereon. The automobile was left to defendant. From this decree the defendant has appealed to this court.

It is the claim of counsel for the appellant that the trial judge was wrong, first, in granting plaintiff a decree of divorce; second, that he should not have given plaintiff custody of the two boys; and, third, that, if a divorce is granted, ‘the property should be held by the parties in common according to the provisions of the statute.’

We will take up these claims in the order stated:

1. There was testimony of language and conduct on the part of the defendant toward his wife that justified the trial judge in stating in his written opinion the following:

‘The plaintiff has sustained the burden placed upon her by proving, by a preponderance of the evidence, of the charge against her of unchasity by the defendant. That is the most cruel thing that a husband can charge a wife with. And she has also sustained the burden of proof in showing the aspersions he has cast upon her and that he has cursed and illtreated her.’

It is true the defendant denied this testimony, but the wife was corroborated by other witnesses. This testimony, if quoted, would not look well on a printed page, and we refrain from doing so.

2. Did the court err in relation to the custody of the boys? The statutory provisions as to who shall have the custody of the children in case of the separation of the parents are found in section 11484, C. L. 1915. No hard and fast rule is prescribed by the statute. The important thing is what will be best for the child. See Weiss v. Weiss, 174 Mich. 435, 140 N. W. 587, and Nichols v. Nichols, 222 Mich. 126, 192 N. W. 671. The record indicated the children would be better off with the mother than with the father.

3. Did the court err in his disposition of the property? The testimony of the wife is illuminating. We quote:

‘Eleven years ago this June, in 1913, my husband and I purchased a home on contract. The purchase price was $1,200. There has been only $550 paid on it since that time, less than half of the purchase price. There was $50 paid down-$25 that he gave and $25 that I paid was the first payment-and he was to pay $11 a month on that, and there has been times when he didn't even pay the taxes. I have paid the taxes twice. I have the slip right here. The July taxes were not paid yet a week ago.

‘The Court: All the payments made on the contract excepting the July taxes? A. Yes; and the water rates.

‘Q. Have you made any improvements on that place? A. Yes; I put in a furnace that cost $132. I put in a toilet that was $44. I put in a sink that was $23.25. I have put in flooring on the hall floor and the front room floor and the bedroom floor. It is just pine-soft wood. I papered it and painted it and plastered the places that were out, the broken pieces, out of my own money, and I have even as much as painted the outside of the house. I did the actual labor myself, that was last summer I...